The Archbishop of What?!

Jean Binkovitz, M.S.,J.D.

Asylum Law and the International Community

Web Sites

http://www.angelfire.com/oh5/tracking/Laser.html

http://www.pbs.org/pov/pov1999/wellfoundedfear/

http://deal.ohio-state.edu/denton.2/mclc/mclctrans/huangxiang.htm

“Like a Bridge Over Troubled Water”

Asylum Law: Bridging Domestic and International Law

Jean Binkovitz, M.S., J.D.

Who Gets Asylum?

Persons are eligible for asylum if they: Meet the definition of refugee Are eligible for the favorable

exercise of discretion Are not otherwise barred

Definition of Refugee “Any person who is outside any country of

such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.”– INA S.101(a)(42)

Asylees/Refugees are: Outside their country of residence Unable or unwilling to get government protection Due to persecution or well-founded fear On account of:

Race Religion Nationality Social Group Political opinion

“They’re just deportees” (“Plane Crash at Los Gatos”)

Eligibility:Who is left out?

Persons fleeing war or general disasters

Persons suffering because of economic, social, and cultural status

Barred: Persecutors

Picture: Karen refugee camp in Thailand (recent closing of some camps pending summit) from http://www. Kenzemach.com/thaiphotos/

umpheinmei.html

International Law Sources Include: Treaty (UN)

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

Convention Against Torture*

• *Expanded coverage

Custom Evidenced by

practice and opinio juris

Right to seek refuge from conflict (evidenced by inclusion in Geneva Convention and ICJ Statutes)

UDHR

And General Principles

Examine Common elements of domestic legal systems

• Res judicata• estoppel

Equity considerations Structural assumptions about international law

• States/sovereignty• Consent• Pacta sunt servanda

Jus Cogens (U.S. preserves discretion here) Non-refoulement? Pacta sunt servanda? ...

DeclarationsThe Embodiment of Customs or Principles

Universal Declaration of Human Rights (1948)

UDHR Article 2

“Everyone is entitled to all the rights and

freedoms set forth…without distinction…such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

UDHR Articles on Asylum Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

Article 14

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the principles of the United Nations

Domestic Law

Federal authority “inherent in sovereignty”

Refugee Act of 1980 Refugees Asylees (Withholding)

Created Asylum Procedure

“I hear you knockin’, but you can’t come in”Little Richard, “Keep a Knockin’”

Other U.S. Requirements Eligible for discretionary relief

• One year limit generally

Not otherwise inadmissible• Persecution of others

– Slavery Practices• Convictions of serious crimes• Firm resettlement• National security• Terrorist activity• Safe third country, previous denial

“The Times They are A-Changin’” - Dylan

Recent Changes

One year limit Detention of asylum seekers from

designated countries Limited opportunities for decision

review

Deciding Cases Documentation Issues

• Availability• Fraudulent

Translation Problems• Accuracy• Timing• Advice and commentary

Torture Impact• Reluctance• Physical surroundings• Physical exam

POV Program and Website: Well-Founded Fear

More problems:

Country Report Problems• See in video clips• DOS bias• Inaccuracy

Demeanor Issues • Cultural variance• Anxiety

Date Inconsistencies

“Bringing It All Back Home”-Bob Dylan

Asylum law bridges international and domestic law

Asylum protects people only in very limited situations

Asylum law reflects a broader principle of non-refoulement

International law influences domestic law